068-NLR-NLR-V-36-UPARIS-et-al-v.-ROBERT-et-al.pdf
322
GARVIN S>.J.—Uparis v. Robert. '
1934Present: Garvin S. P- J. and Maartensz J,
UPARIS et al. v. ROBERT et. oL23—D. C. Galle, 30,946.
Malapala lands—Nature of tenure—Possessed by minor Headmen and culti-vators—Registration as owners before the Landraad.
Malapala lands are lands which have reverted to the Crown owing tothe failure of heirs. They were given on certain conditions to minorheadmen to be possessed by them as remuneration for their services orto cultivators upon terms that they gave a share of the produce to theCrown. In both cases the lands remained the property of the Crown, butby a Proclamation of the year 1800 the occupiers of such lands to whomthey were given as remuneration of services were permitted to appro-priate the. same upon terms that they proved the material facts beforethe Landraad.
^j^PPEAL from a judgment of the District Judge of Galle.
H. V. Perera (with him J. R. Jaye war dene), for plaintiffs, appellant.
N.E. Weerasooria (with him E. B. Wikramanayake), for defendants,respondent.
June 11, 1934. Garvin S.P.J.—
This was an action for a declaration of title to a land, Weligodamulla.It was the case for the plaintiffs that by right of purchase upon a Crowngrant, dated September 23, 1889, one Endoris de Silva became entitledto the entirety of this land. Endoris had a number of children. To fourof these—Alwis Dias, Elias Dias, Marthenis Dias, and Jane Dias—he con-veyed the premises by the deed No. 9,166, of September 27, 1912. AlwisDias had mortgaged his £ share, and in due course his interests werebrought to sale in execution of a decree in favour of the mortgagee and.weTe purchased by his brother, Robert Dias. In the year 1920 by thedeed P4, Robert Dias and the other three co-owners conveyed thepremises to the second plaintiff who was their sister. The evidence showsthat this transfer though in form a conveyance on sale was in realityexecuted at the instance of their mother by way of dowry to their sister,Baby Nona, the second plaintiff, on the occasion of her marriage to thethird plaintiff. The second and third plaintiffs leased the premises to thefirst plaintiff in the year 1930, and it is alleged that while the first plaintiffwas in possession as tenant of the second and third plaintiffs, he wasousted by the defendant. The third defendant is herself a daughter,presumably the eldest daughter of Endoris de Silva. She was marriedto one Hendrick William, who died in the year 1908. The first defendantis their son. The defendants claimed to be entitled to a half share of thisland which they <eall Wellegedamullaowita. They pleaded that thepremises belonged in equal shares to one Mathes and another; thatMathes by the deed 1 D 3 of the year 1877 conveyed his half share toMoses de Silva, who by the deed 1 D 4 of 1884 sold to Babappu and thatBabappu by the deed 1 D 5 of 1890 sold to Hendrick William. They
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pleaded further that the land, which is said to be of 55 pelas extent, wasMalapala land which belonged as to 4/5 to Mathes and his co-owner, whilethe remaining 1/5 belonged to the Crown, They alleged that the Crowngrant in favour of Endoris was only effective to pass title to a 1/5 shareof the land and denied the right of the plaintiffs to anything more than a1 5 share of this land.
The learned District Judge dismissed the plaintiff’s action with costsand declared the defendants entitled to an undivided half share of the land.In view of his own finding that the Crown grant was effective to pass titleto a 1/10 and the admission throughout the evidence in this case thatEndoris and his successors in title including the plaintiffs have togetherfor the last 45 years been in possession and enjoyment of a full half shareof the land the decree in so far as it dismisses the plaintiff’s action cannotbe sustained. It is urged, however, on behalf of the plaintiffs who appealthat the learned District Judge’s conclusion was wrong and that uponthe evidence judgment should have been entered for the plaintiffs asprayed for.
Now the learned District Judge has accepted the submission that thiswas Malapala land. This finding is based upon a note in an extract froma register of sale of Crown lands. The document is headed “Statementof offers made for the under-mentioned portion of Crown land in the Ganga-boda pattu at a sale held at the Baddegama Rasthouse on December 12,1887 There follow particulars of the date of sale, the number of thepreliminary plan, the name of the land, its situation, the extent, the nameof the purchaser, survey fees, upset price, and the “ amount of saleEntries made under that head show that the land, Wellegodamulla, waspurchased by Don Endoris de Silva. In the column relating to thesituation of the land which is said to be Udaweliwitiya there appears thefollowing :—“1/10 Malapala (see marginal note)”. Having arrived atthe conclusion that the land was Malapala, the District Judge appears tohave accepted the submission that Malapala lands were lands in whichthe Crown was a co-owner with its subject and that in this particularinstance the Crown was entitled to 1/10 of the land, the remaining 9/10being the property of the persons in possession.
The term “ Malapala ” as the word signifies was applied to lands whichhad reverted to the Crown through failure oi heirs. Such lands weresometimes given to certain classes of petty headmen to be possessed andenjoyed by them as remuneration for their services upon condition that
of the produce was given to the Government. In other instances theland was merely given to a cultivator upon terms that he was to give theGovernment a share of the produce which was generally a half but whichwas often considerably reduced where the soil was infertile and difficultto work. In both cases the Crown remained the owner of the land, butby the Proclamation of May 3, 1800, the occupiers of Malapala lands towhom the same were given as remuneration of services were permitted toappropriate the same upon terms that they. proved the material factsbefore the Landraad and caused them to be registered in the registry ofthe district. The occupier thereupon became the owner of the landsubject to a liability to pay the Crown a £ share of the produce. In allother cases Malapala lands remained the property of the Crown. There
324
GARVIN S.P.J.—Ufwris v. Robert.
is no evidence here that this land was at any time given out as remu-neration for services or that it was “ enregistered ” as required by theProclamation of 1800. There is no evidence at all of any regular paymentof a £ share to the Crown at any time. Indeed, if any inference is to bedrawn from this entry in the Register of Sales which is the only evidencewhich has any bearing upon this question it is that it was regarded asCrown property and at the disposal of the Crown. The figures 1|10consistently with the rest of the document would seem to indicate thatthe share exacted from the cultivator was one-tenth. The inferencesarising from this entry are consistent with the Crown grant whereby theCrown purported to sell and convey the entire land'and not any limitedinterest therein. Indeed, there is nothing either in this case or in thehistory of Malapala lands to support the suggestion that the Crown wasa co-owner in this land to the extent of 1|5 as originally suggested or to1 f 10 as later found by the Judge. The plaintiffs are thus able to relatetheir title to a grant from tHe Crown and the entry in the extract far frombeing antagonistic to this claim supports their contention that the Crownhad good title to the land, for as I have endeavoured to show the Crownis the owner of all Malapala lands except such as have passed into privateownership by reason of the appropriation permitted by the Proclamationof May 3, 18QC.
It is by no means unlikely that prior to the date of the sale by the Crownthis land was cultivated and possessed from time to time by villagers andpossibly by Moses and that the occupiers came to regard themselves ashaving some right in the land. This would explain and account for thedeeds produced by the defendant. But it is a striking circumstance thatwhile the defendants claim that Hendrick William and his predecessorsdid enjoy a half share there is no evidence whatever of any possession orenjoyment of the remaining half share by those to whom they allege itpassed. Indeed, it is admitted that Endoris from the time of the Crowngrant did exercise rights of ownership in respect of this land which arewholly inconsistent with the suggestion that all that he obtained was a1 [5 or a 1110. The District Judge states with reference to the possession
of the plaintiff’s predecessors in title “ Their possession
enures to the benefit of the defendants their co-owners. This appears tome to be fortunate for defendants as they could hardly expect to supporttheir position on both tattumaru possession and also an amicable divisionby a fence ”. There can be no question, therefore, that the plaintiffs andtheir predecessors in title have been in possession of this land and thatthat possession is ascribable to a grant of the entirety of this land fromthe Crown which apparently was vested with good title to the premises atthe time of the grant. If the defendants are to succeed it can only be byproof of a prescriptive title. They do not claim to have acquired anythingmore than a half share of the land and as is evident from the DistrictJudge’s observations he was inclined to the view that the land was in thepossession of the plaintiffs and not of the defendants.
To reinforce the title based upon the Crown grant the plaintiffs calleda large number of witnesses, aipiong them usufructuary mortgages of thewhole land. These witnesses not only proved that the entirety of thisland was possessed and enjoyed by the plaintiffs and their predecessors
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but repel the submission of the first defendant that for the last 22 yearsthe land had been divided into two parts by a fence, one portion beingpossessed by the plaintiffs and the other by themselves. The firstdefendant in the course of his evidence stated at one stage that all thatEndoris received originally was a 1/5 share of the produce from thosewhom he contended were the real owners of the land. He admitted afterperusing the document 1 D 1 that he could only have received a 1/10.He later stated that his father and Endoris, his grandfather, possessedthe land in tattumaru and later on that upon the death of his father whichtook place in 1908 and thereafter the land had been divided into twoportions by a fence. Now what the evidence for the plaintiffs shows isthat such a fence had been erected shortly before this case came intoCourt and the existence of a fence for a period of 22 years is totallydenied, among others by the peace officers of the district. Indeed, thethird defendant who was the first defendant’s mother, herself the daughterof Endoris, when speaking of the fence stated: “The fence runningacross the land was put up four or five years ago. Before that there wasno separation of the land”. In such circumstances it is quite impossibleto accept the defendant’s evidence of possession. Indeed, the onlycircumstance in the defendant’s evidence which is consistent with a claimof right is a lease granted in the year 1890, by Hendrick William, of thisland and another land called Adaragankande. The period of the leasewas five years. Endoris appears to have acquiesced in the lease, butthereafter every document produced was executed by Endoris. Theyconsist of two usufructuary mortgages and one other bond mortgagingthe property. The explanation suggested for the lease by HendrickWilliam is that his father-in-law Endoris permitted him to possess theland. A circumstance which supports this explanation is that the otherland, Adaragankande, admittedly belonged to Endoris and is not evenclaimed by the defendants. If Endoris permitted Hendrick William tolease and presumably appropriate to himself the profits of the lease ofAdaragankande, there is no reason to reject the same explanation of thecircumstance that Hendrick William is found by the same document tohave leased the land now in dispute. That lease expired in 1895, and theeffect of the evidence both oral and documentary is that the land thereafterremained in the possession and enjoyment of Endoris and his successorsin title.
There is another circumstance which is not without significance. Theconveyance in favour of the second plaintiff was, as stated earlier, grantedat the time of her marriage to the third plaintiff in the year 1920. Thethird defendant who is a sister of the second plaintiff stated that sheattended to everything in connexion with marriage, that she was consultedin regard to the proposal but that she did not know whether this land wastransferred to the second plaintiff as dowry. She added, “ I do not knowwhat was given her as dowry Later, in her evidence, she stated:
“ My brothers and sisters transferred their half share of Weligodamullato the second plaintiff as dowry ”. Since her son, the first defendant,says “ I heard that this land was given as dowry to the second plaintiff ”,there can be little doubt that she was fully aware of the transfer of thisland as dowry to the second plaintiff in 1920. Being aware of it she and
326
AKBAR J,—Jayawardene v. Abdul Coder.
her son appear to have acquiesced in it until unpleasantness arose at the ,time of the distribution by the third defendant’s mother of her property.
The defendants clearly failed to establish a title by prescription or anyother title to the half share they are claiming, whereas on the contrarythe title of the plaintiffs which appears to me to be unimpeachable isreinforced by clear evidence of adverse and uninterrupted possession forten years and more.
The judgment under appeal is set aside and judgment will be enteredfor the plaintiffs as prayed for, save that damages will be assessed at therate agreed upon. The plaintiffs are entitled to their costs both here andbelow.
Maartensz J.—I agree.
Appeal allowed.